Executive Summary: Key Legal and Evidentiary Issues

• ACP undertook construction (an overhead door and access ramp) without a permit, violating By-Law #Z-419 and the Building Code Administration Act.

• The City issued compliance orders in 2021 and 2023, requiring ACP to apply for a building permit.

• ACP appealed the 2023 Order, arguing the building was not used as a “storage garage.”

• The Court held that the Building Inspector had authority to issue an order requiring a permit under section 14(1)(c) of the Act.

• The Court rejected ACP’s limitation period argument, noting enforcement timing does not affect the validity of administrative orders.

• The appeal was dismissed; ACP was ordered to pay $2,500 in costs to the City of Moncton.

Background facts: Unauthorized construction and orders

In the fall of 2021, Atlantic Commercial Properties Inc. (ACP) modified its property by replacing two outer doors with one overhead door and building an access ramp. This allowed vehicles direct access to the building—construction that ACP completed without a building permit, contrary to By-Law #Z-419 and the Building Code Administration Act, SNB 2020, c 8. The City’s Building Inspector noticed the changes and issued an order in October 2021 (the “2021 Order”) instructing ACP to apply for a permit and bring the modifications into compliance.

Despite initial steps taken by ACP, the application process was never finalized. In October 2023, a second order (the “2023 Order”) was issued. ACP appealed this second order to the Building Code Administrator, who rejected the appeal on November 17, 2023. ACP then appealed that decision to the Court of King’s Bench under section 15.2 of the Act.

Legal issues raised on appeal

ACP challenged the Building Code Administrator’s decision on three grounds:

1. The property was incorrectly classified as a “storage garage” under the National Building Code.

2. The Building Inspector lacked authority under the Act to issue an order requiring ACP to apply for a building permit.

3. The Administrator erred in refusing to consider whether the limitation period for enforcement under the Provincial Offences Procedures Act had expired.

Court's analysis and findings

The Court considered the applicable standards of review: correctness for questions of law, and palpable and overriding error for questions of fact or mixed fact and law.

• Storage garage designation: The Court found no error. The Building Code Administrator properly assessed both the “actual or intended use” and “possible use” of the property, considering the physical modifications, their permanence, and evidence that vehicles had previously been parked inside. A letter from ACP to its tenant requesting not to park inside did not amount to a prohibition or sufficient proof of non-use. Thus, the classification as a “storage garage” was upheld.

• Authority of the Building Inspector: The Court ruled the Inspector had authority under section 14(1)(c) of the Act to require ACP to apply for a permit. A “fair, large, and liberal” interpretation of that section supports the City’s position that such orders aim to ensure public safety, particularly for unpermitted construction.

• Limitation period: The limitation period under section 95 of the Provincial Offences Procedures Act (six months) pertains only to prosecuting offences—not the issuance of administrative orders. The Court held that ACP’s argument conflated enforcement proceedings with the validity of an administrative order. Thus, the Administrator acted within his discretion in not addressing the limitation period.

Outcome

The Court dismissed ACP’s application in full. It found that the Building Code Administrator’s conclusions were reasonable and legally sound. ACP was ordered to pay $2,500 in costs and allowable disbursements to the City of Moncton. The decision reinforces the enforcement powers granted under the Building Code Administration Act and the standard of compliance expected from property owners undertaking construction work.